Planning Report Zinnia Health West Orange NJ

101 Gibraltar Drive, Suite 1A, Morris Plains, NJ 07950 · Phone: 973.222.6011 · Fax: 973.786.6537 John McDonough Associates, LLC Land Use Planning · Landscape Architecture PLANNING REPORT PREPARED FOR ZINNIA HEALTH, LLC FOR PROPERTY LOCATED AT 33 MOUNT PLEASANT AVENUE BLOCK 88 LOT 26 TOWNSHIP OF WEST ORANGE ESSEX COUNTY, NJ (November 8, 2024) ____________________________________ John McDonough, LA, AICP, PP NJPP License #33LI00518900 The original of this report was appropriately signed and sealed in accordance with laws and regulations pertaining to the practice of Professional Planning in New Jersey (NJSA 45:14A and NJAC 13:41-1.3(b))

Planning Report – Zinnia Health November 8, 2024 33 Mount Pleasant Avenue, West Orange NJ John McDonough Associates, LLC Land Use Planning · Landscape Architecture 2 101 Gibraltar Drive, Suite 1A, Morris Plains, NJ 07950 · Phone: 973.222.6011 · Fax: 973.786.6537 Overview and Project Description This planning report is submitted in support of an application filed by Zinnia Health, LLC for adaptive reuse of the former Canterbury nursing home as a residential mental health care facility. The application includes a rider which describes the nature of the proposed facility’s operations, which is attached to this report as Appendix A. In general, people receiving treatment at the facility will reside on the premises for approximately 30 to 60 days. Substance abuse treatment is included. The subject site consists of a single tax lot identified as Block 88 Lot 26 with an address of 33 Mount Pleasant Avenue. The property is currently developed with a one-story building that was formerly utilized as a nursing home (Canterbury Village) and related parking. The site is located near West Orange town hall and police station, and Route 280. Surrounding land uses are varied and include residential, commercial, and civic. The area is transforming with new construction across the street from the site. Maps and photographs are provided below. Zoning Considerations The site is in the OB-2 Office Business District. The zone “nests” permitted uses in the R-1 and OB-1 zones. Permitted principal uses include office buildings; single-family detached dwellings; water reservoir; well tower; filter bed; federal, state, county or township buildings; golf courses and clubhouses; farm, nursery, greenhouse and similar uses; and hospitals. Permitted conditional uses include, among other uses, nursing homes; congregate care facilities; assisted living facilities; and long-term care residential health care facilities. The application includes a request that the board consider an interpretation pursuant to N.J.S.A. 40:55D-70.b. to establish which use category (and associated statutory test) should be applied to the proposed facility. To assist the board in its interpretation, below is a summary of the uses that may be considered. Notwithstanding the ultimate interpretation of the actual use category, it is the position of this report that the application meets any or all the statutory tests

of the uses that may be considered. Notwithstanding the ultimate interpretation of the actual use category, it is the position of this report that the application meets any or all the statutory tests that would apply for approval. • Hospital. The board may find that the use is a hospital because it meets New Jersey Department of Health definitions provided by the zoning officer and applicant’s attorney that, in para, the facility provides treatment or care of individuals suffering from illness for periods exceeding 24 hours. If the board determines that the application aligns with this use category, then the use may be treated as a permitted principal use in the OB-2 zone. • Long term-residential health care facility. The application includes a summary of prior approvals for the site and at least one of the approvals (ZB-95-16 in 1995) concluded that a licensed residential healthcare facility was a permitted use in the OB-2 zone. The board’s former planner rendered the same conclusion in this regard. The current planner has rendered a conclusion that the application may be adjudicated by the board on the basis of it being a permitted conditional use as a long term-residential health care facility. There are eleven (11) conditional use standards that apply to this use, they are all bulk conditions, and to the extent the existing build-out does not meet any of those standard, then conditional use relief pursuant to N.J.S.A. 40:55D-70.d.(3) would be required.

Planning Report – Zinnia Health November 8, 2024 33 Mount Pleasant Avenue, West Orange NJ John McDonough Associates, LLC Land Use Planning · Landscape Architecture 3 101 Gibraltar Drive, Suite 1A, Morris Plains, NJ 07950 · Phone: 973.222.6011 · Fax: 973.786.6537 • Non-permitted use. To the extent the board interprets that the application does not align with the use category of hospital or long term-residential health care facility, or any of the permitted uses in the OB-2 zone, then use relief pursuant to N.J.S.A. 40:55D-70.d.(1) would be required. As stated above, notwithstanding the ultimate interpretation of the actual use category, it is the position of this report that the application meets any or all of the statutory tests that could apply, whether the board ultimately determines that the use is a permitted principal use (hospital), or permitted conditional use (long term-residential health care facility), or requires “d(1)” use relief or “d(3)” conditional use relief. The practical reasoning is that the zone allows a wide variety of medical uses and the proposed use is clearly a medical use. Therefore the use, if not a permitted use per se, is certainly akin to permitted uses. Planning Justifications for Relief Land use planning operates within a legal framework. The statute recognizes that land use regulation is not meant to be rigid and inflexible and gives zoning boards authority to grant “adjustments” if specific criteria are met, commonly referred to as the statutory positive criteria and the statutory negative criteria. “d(1)” Use Relief If the board interprets that “d(1)” use relief is required for a non-permitted use, the application satisfies the statutory criteria for grant of such relief as established by N.J.S.A. 40:55D-70.d.(1) and Medici v. BPR Co., 107 N.J. 1 (1987). The statutory positive criteria are satisfied because the site is particularly suited for the use, by virtue of its condition as a former nursing home readily able to accommodate adaptive reuse with minimal site alterations, and its context which includes a nicely comingled mix of uses including residential, commercial, civic, and transportation. The project further satisfies the statutory positive criteria because it advances one or more fundamental purposes of the municipal land use law at N.J.S.A. 40:55D-2, including: • Purpose (a), the promotion of the general welfare,

the statutory positive criteria because it advances one or more fundamental purposes of the municipal land use law at N.J.S.A. 40:55D-2, including: • Purpose (a), the promotion of the general welfare, because it delivers a beneficial use that caters to persons suffering from mental illness. The board may also find that the use is “inherently beneficial” which means the positive criteria are automatically satisfied and the simplified Sica standard applies. Case law on this point is discussed later in the report. • Purpose (g) to provide for a variety of uses in appropriate locations according to the needs of all New Jersey citizens because the site is particularly suited for the use for the reasons set forth above and because the use caters to persons in need. • Purpose (i) to promote a desirable visual environment because the project is for adaptive reuse of an attractive building and attractive site and the application retains that which is already there and familiar in the public eye. • Purpose (m) efficient use of land because the project involves adaptive reuse of a former nursing home as opposed to new construction, and no tree removal or earthwork.

Planning Report – Zinnia Health November 8, 2024 33 Mount Pleasant Avenue, West Orange NJ John McDonough Associates, LLC Land Use Planning · Landscape Architecture 4 101 Gibraltar Drive, Suite 1A, Morris Plains, NJ 07950 · Phone: 973.222.6011 · Fax: 973.786.6537 The project satisfies the statutory negative criteria for grant of “d(1)” relief because such relief can be granted without substantial detriment to the public. The applicant will provide testimony as to operational and site management aspects of the use, to affirm that the site will flow, function, and operate safely, securely, efficiently, and comfortably, in accordance with regulatory requirements, health codes, and building codes. The use is compatible with the mixed character of the area since it retains the existing build-out and delivers a health care use on a site that has historically been associated with health care use. In addition to the above, relief can be granted without substantial impairment to the zone plan because the use is akin to many of the medical uses that are permitted in the OB-2 zone. The degree of departure from the zone plan is not substantial. “d(3)” Conditional Use Relief If the board interprets that “d(3)” conditional use relief is required because the application does not meet one or more conditional use standards for a long term-residential health care facility, the application satisfies the statutory criteria for such relief established by N.J.S.A. 40:55D-70.d.(3) and the New Jersey Supreme Court in Coventry Square, Inc. v. Westwood Zoning Bd. Of Adjustment, 138 N.J. 285 (1994) and TSI East Brunswick v. Zoning Bd., 215 N.J. 26, 45-46 (2013). The standard of proof for conditional use relief is distinctly different than for a non-permitted use. The court in Coventry clarified the statutory positive criteria, such that the use per se is not at issue and the more stringent Medici standard of site suitability does not apply. The court in TSI clarified the negative criteria, to the extent the enhanced Medici burden of proof as to reconciliation of the omission of the use from the zone does not apply, since it has already been established that the use is appropriate for the zone. Thus, the focus is on the impact of the deviations, not the use, and the statutory test for “d(3)” conditional use relief is significantly more relaxed than “d(1)” relief. The statutory positive

zone. Thus, the focus is on the impact of the deviations, not the use, and the statutory test for “d(3)” conditional use relief is significantly more relaxed than “d(1)” relief. The statutory positive criteria are satisfied for the same reasons as the “d(1)” relief set forth above, i.e. the project delivers a beneficial use that serves the general welfare and entails efficient adaptive reuse of a former nursing home. The statutory negative criteria are satisfied because all the conditional use standards are bulk controls and the application is taking the site “as is” so any bulk deviations are existing conditions that are not changing or worsening as a result of the application. Therefore, conditional use relief can be granted without substantial detriment to the public and without substantial impairment to the zone plan. Permitted Use If the board interprets that the use is a permitted use or a permitted conditional use, then the application only requires site plan approval if it is not exempt from site plan approval altogether. The site is an established approved site which implies that it has been designed in accordance with sound site planning and design standards in terms of access, circulation, parking, utilities, grading, drainage, erosion control, landscaping, lighting, and signage, and in terms of building design, orientation, and positioning.

Planning Report – Zinnia Health November 8, 2024 33 Mount Pleasant Avenue, West Orange NJ John McDonough Associates, LLC Land Use Planning · Landscape Architecture 5 101 Gibraltar Drive, Suite 1A, Morris Plains, NJ 07950 · Phone: 973.222.6011 · Fax: 973.786.6537 Legal Considerations The following excerpts from the Cox treatise on land use (2024 edition) are provided to assist the board in its consideration of the interpretation and adjudication of the application. This is by no means intended as legal opinion or legal brief since this author is not a lawyer, and thus these cases and excerpts are simply offered for reference, guidance, and assistance in helping the board render its decisions. • In L & L Clinics, Inc. v. Irvington, 189 N.J. Super. 332 (App. Div. 1983), certif. den. 94 N.J. 540 (1983), the Town of Irvington in its zoning ordinance permitted in the B-1 Primary Business District "retail outlet and personal service uses as, or similar in nature to: ... business and professional offices." Id. at 335. The plaintiff sought to put a methadone clinic in this district contending that it was a "professional office." The municipality said that it was a "hospital" and thus not permitted. The court made much of the fact that a facility of this type requires a certificate of need from the State Department of Health and that when the certificate is issued it indicates that the proposed facility is "necessary to provide required health care and service in the area to be served..." Id. at 339. The court then said "when, as in this case, the need for a health care facility has been demonstrated and a certificate of need issued, public policy supports a reasonable interpretation of a municipal zoning ordinance which permits the use," Id., pointing out that a zoning regulation like any other police power enactment must promote public health, safety, morals or general welfare. The court stated, at 340: “We reject as unreasonably rigid the exclusionary interpretation which the Town of Irvington has placed on the words `personal service uses...; similar in nature to ... professional offices' in its prime business zone in this situation”. Subsequently, the Legislature adopted N.J.S. 40:55D-66.10 permitting a municipality by ordinance to limit the placement of methadone clinics to business and commercial districts. • Hospitals are also uses which have been held

ture adopted N.J.S. 40:55D-66.10 permitting a municipality by ordinance to limit the placement of methadone clinics to business and commercial districts. • Hospitals are also uses which have been held inherently to promote the public good. Kunzler v. Hoffman, 48 N.J. 277 (1966), permitted a private hospital for the emotionally disturbed in a residential district. See also Med. Ctr. v. Princeton Tp. Zoning, 343 N.J. Super. 177, 201 (App. Div. 2001) (hospitals are indisputably inherently beneficial uses). Hospitals have been confirmed as inherently beneficial by the legislature in its definition of inherently beneficial use at N.J.S. 40:55D-4 adopted by L. 2009, c. 146, §1. • It has been held that a residential narcotic rehabilitation and treatment center under the supervision of the Commissioner of Health was a "hospital" and qualified as an "institutional use" under a local zoning ordinance. Scerbo v. Orange Bd. of Adj., 121 N.J. Super. 378 (Law Div. 1972). However, it is likely that such centers not supervised by the Commissioner will not so easily qualify as either a hospital or an inherently beneficial use. Important proofs in such cases would include substantial evidence of a community need for a detoxification facility.

Planning Report – Zinnia Health November 8, 2024 33 Mount Pleasant Avenue, West Orange NJ John McDonough Associates, LLC Land Use Planning · Landscape Architecture 6 101 Gibraltar Drive, Suite 1A, Morris Plains, NJ 07950 · Phone: 973.222.6011 · Fax: 973.786.6537 • It was also held that nursing homes and hospitals are uses which are so similar, both physically and functionally, that their disparate classification for zoning purposes cannot be justified. Urban Farms, Inc. v. Franklin Lakes, 179 N.J. Super. 203 (App. Div. 1981), certif. den. 87 N.J. 428 (1981). See also P.D.M. Constr. Corp. v. Welsh, 89 N.J. Super. 460, 464 (Law Div. 1965), aff'd 91 N.J. Super. 125 (App. Div. 1966), noting that there was no question but that private nursing homes served the general welfare as much as public. And see Mercurio v. Delvecchio, 285 N.J. Super. 328, 336-337 (App. Div. 1995), certif. den. 144 N.J. 377 (1996) noting that nursing homes are inherently beneficial uses. • Because medical and nursing home facilities tend to involve very intensive use of property, there has been a great deal of focus on the negative criteria when applications for such facilities come before boards. The negative criteria are discussed at 8-2. For purposes of this discussion it is important to note that in reviewing board denials of such applications, courts have emphasized the positive criteria, that is, the particularly great benefits to the community at large inherent in these uses. In Sica v. Board of Adjustment of Tp. of Wall, 127 N.J. 152 (1992) the Court reinstated Law Division approval of a variance to permit a 40 bed residential facility for the rehabilitation of head trauma victims in a residential district. • In Meridian Hosps. v. Point Pleasant, 325 N.J. Super. 490 (App. Div. 1999), certif. den. 163 N.J. 80 (2000), the court set aside the denial of a variance for a nursing home on the 3rd and 4th floors of an existing hospital. There the Board had erroneously linked the arrival of the nursing home to the departure of acute care facilities from the hospital. The court found that the two were not linked and moreover that it was beyond the zoning power to attempt to control hospital resources that were entirely under the regulatory control of the DHSS. • In Jayber, Inc. v. Municipal Council, 238 N.J. Super. 165 (App. Div.), certif. den. 122 N.J. 142 (1990), where the governing body